Chapter 5: Fair Housing in the Richmond Region
Issues:
Discrimination limits housing choice, access to neighborhoods of opportunity
This chapter provides an overview of the fair housing laws, describes the enforcement process in general, and discusses how housing discrimination is addressed in the Richmond region.
In order to evaluate the extent of housing discrimination in the Richmond area, this section looks at complaints made by those who believe they have encountered illegal housing discrimination. There are three primary sources of information about fair housing complaints: inquiries made to HOME about possible housing discrimination; fair housing administrative complaints filed with the state and federal agencies; and complaints filed in the courts. Information from these three sources is detailed below.
A Framework for Fair Housing Enforcement
While there are many local variations, it is generally agreed that a comprehensive network of fair housing services that will operate effectively to reduce and ultimately eliminate, housing discrimination requires the five following elements:
an appropriate legal framework,
government agencies charged with enforcing the laws performing effectively, a local government that supports fair housing,
a competent fair housing organization accessible to all members of the community that provides the full range of fair housing enforcement services, and a sufficient number of experienced private attorneys to competently represent
victims of housing discrimination.
This section evaluates the availability of these components and provides background information on federal and state fair housing laws, administrative enforcement, and other fair housing enforcement procedures.
The Legal Framework
Background on Fair Housing Laws
The Civil Rights Act of 1866 first recognized that “[a]ll citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.” These laws
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lay more or less dormant for a hundred years. In the wake of the assassination of Martin Luther King, Congress passed the Fair Housing Act of 1968. This law specifically recognized that minorities experience unequal access to housing and outlawed discrimination in housing transactions based on race, color, religion, and national origin. Later three more protected classes were added: sex in 1974 and familial status and handicap in 1988.
As amended in 1988, the federal Fair Housing Act is a broad civil rights law that protects people on the basis of race, color, religion, national origin, sex, familial status (a household in which an adult is responsible for someone under the age of 18), and handicap. These protections extend to a broad range of housing-related transactions. The Virginia fair housing law, originally enacted in 1972 and significantly amended in 1991, is substantially equivalent to the federal provisions. In some cases it provides more coverage than the federal law, such as adding elderliness (defined as 55 years old and older) to the list of protected classes. The City of Richmond also has a fair housing ordinance, but does not implement its limited enforcement provisions.
Protected Classes:
Protected classes are categories determined by legislative bodies to be subject to discriminatory housing practices and deserving of legal protections. Under the fair housing laws, providers of housing and housing-related services are prohibited from limiting housing choice or treating people unfavorably based upon membership in any of the protected classes. Race includes all races; color includes all colors; national origin covers all ancestries and applies to all residents regardless of citizenship; religion protects those of all religions and those of no religion; sex means discrimination based upon gender and includes sexual harassment in housing; familial status means the presence of children under 18 in a household; handicap includes persons with broadly defined mental and physical disabilities; elderliness is defined as persons aged 55 years and older.
Covered Transactions
The array of housing transactions covered by the Fair Housing Act includes, among others, the advertising, rental, sales, and appraisal of residential real estate, as well as mortgage lending and homeowners insurance services and transactions. All stages of each type of transaction are covered. To illustrate, discrimination may occur in rental housing transactions at the time of application or approval, or in the contract terms and conditions, unit assignment, and in how routine and special maintenance needs are met. In terms of housing sales, discrimination may happen in whether or how an agent provides housing options, in the offer and acceptance of a contract, in the mortgage loan processing and approval process, or in the securing of homeowner’s insurance.
Types of Discrimination
There are three general ways in which discrimination can occur: overt statement, differential treatment, and disparate impact. In an overt statement, a landlord may say, for example, that she will not rent to men because she believes they are messy. This is a clear statement of discrimination on the basis of gender. Differential treatment occurs
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when a housing provider does not make an overtly discriminatory statement, but, for example, tells a black man there are no vacancies and later tells a white man there is a vacancy. Disparate impact occurs when seemingly legal and neutral policies have a disproportionately negative impact on a protected class. To illustrate, a landlord may have a policy of not renting to students that is applied to everyone. However, the only university in the area is a historically black university where 95% of the students are black. The landlord’s policy is neutral, in that it does make any reference to race or any other protected class. Yet in an area where the vast majority of the students are black, the otherwise neutral policy will have a disproportionate effect on blacks. The discriminatory effect of the otherwise neutral policy violates the fair housing laws regardless of the intent of the landlord.
Administrative Enforcement of Fair Housing Laws
The federal Fair Housing Act provides for an administrative process to investigate complaints of discriminatory housing practices and directs the government to litigate in appropriate cases on behalf of victims of discrimination through enforcement agencies at the federal, state and local levels. The law also gives injured parties, including organizations, the right to file their own lawsuits. It allows for substantial monetary compensation and affirmative relief for complainants if violations are proven. The Department of Housing and Urban Development is charged with enforcing the federal fair housing law across the nation, with the support of the Department of Justice. In Virginia, the Department of Professional and Occupational Regulation (DPOR) is home to the Virginia Fair Housing Office (VFHO), which receives and investigates fair housing complaints. VFHO also accepts referrals of complaints initiated through HUD and investigates them under the State law. The state fair housing law requires the Office of the Attorney General to provide legal support and litigation services to the Virginia Fair Housing Office.
Private Enforcement of Fair Housing Laws
The federal and Virginia fair housing laws provide a private right of action for victims of housing discrimination. Fair housing cases may be filed in state or federal court within two years of the alleged discriminatory event. There is no requirement that an administrative complaint be filed first; nor does a dismissal of an administrative complaint prevent a person from filing a case in court.
The Process of Government Administrative Enforcement
Virginia Fair Housing Office
The Virginia Real Estate Board and Fair Housing Board have responsibility for administrative enforcement of the Virginia Fair Housing Law. These boards are located within the Department of Professional & Occupational Regulation and are staffed by the Virginia Fair Housing Office. The Fair Housing Office has jurisdictional requirements and procedures that must be satisfied before a complaint is accepted for processing and does not fully investigate every complaint of housing discrimination it receives. Once a
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complaint is accepted, the office simultaneously conducts an investigation into the alleged discriminatory practices and attempts to assist the parties in resolving the complaint through the conciliation process.
If the parties to a complaint filed with the Virginia Fair Housing Office cannot reach a settlement with the assistance of the office, the Fair Housing Office staff presents the results of its investigation to one of the two independent boards. The Real Estate Board reviews fair housing complaints made against licensed real estate sales agents and brokers and their agents and employees. The Fair Housing Board, which began operating July 1, 2003, reviews fair housing complaints for all cases that do not fall under the Real Estate Board’s jurisdiction. If either board finds reasonable cause to believe that discrimination has occurred, it issues a charge of discrimination, and the Virginia Office of the Attorney General is required to file and maintain a lawsuit in state court on behalf of the complainant.
Settlement or conciliation negotiations are encouraged throughout the investigative process and do not require any parties to the complaint to be represented by an attorney. The Virginia Fair Housing Office is also a signatory to the conciliation agreement and is required to ensure that the public interest in fair housing is upheld. The public interest may be safeguarded through provisions in the agreement that call for affirmative relief, such as a requirement that units be set aside for members of a protected class to remedy the effects of prior discrimination, affirmative marketing, monitoring of future actions, keeping records in such a way as to facilitate monitoring, and fair housing training. The Virginia Fair Housing Office is located in Richmond, which provides Richmond residents relatively easy access to its services.
Federal Enforcement of the Fair Housing Law
In addition to the administrative complaint and conciliation process outlined in the federal Fair Housing Act, the U.S. Department of Housing and Urban Development (HUD) and Department of Justice (DOJ) may become involved in fair housing complaints in other ways.
U.S. Department of Housing and Urban Development (HUD). HUD conducts regular
monitoring reviews as well as complaint-based compliance reviews of housing developments that receive certain kinds of federal assistance. HUD includes fair housing issues in its annual review of housing developments that receive federal funding. If a recipient of federal housing subsidies is found to be violating the fair housing law, HUD seeks to correct the situation through a voluntary compliance agreement. If this option fails, HUD may hold an administrative hearing. If the fair housing violations warrant it, a fair housing investigation may be initiated by HUD’s Office of Fair Housing and Equal Opportunity.
U.S. Department of Justice (DOJ). The Department of Justice shares in the
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local entities investigate individual cases of housing discrimination, DOJ may be involved in fair housing cases in three primary ways.
First, certain types of housing discrimination complaints are filed directly with HUD. In these cases, if HUD issues a charge based on a finding that there is reasonable cause to believe that housing discrimination has occurred, the complainant or the defendant may elect to have the case tried in a federal court. If the case goes to federal court, DOJ attorneys, rather than HUD counsel, represent the interests of the complainant.
Second, DOJ may initiate lawsuits in cases where a person or entity is suspected of engaging in a “pattern or practice” of housing discrimination. The DOJ may also determine that an individual complaint it files in federal court as the result of a HUD charge (under the first scenario) is part of a larger pattern or practice of discrimination, in which case DOJ may include broader charges, seek relief for other individuals, and/or seek civil penalties to be paid to the government. The Virginia Office of the Attorney General has similar authority under the state fair housing law.
Finally, DOJ may initiate fair housing cases where the denial of rights raises an issue of “general public importance.” The U.S. Attorney General determines if an issue, even one that arises out of a single act of discrimination, is of general public importance.
The Role of Local Government in Supporting Fair Housing
Local governments can play a critical role in ensuring their residents equal access to housing. This section includes a description of Richmond’s fair housing ordinance and reviews how Richmond has demonstrated its commitment to fair housing by conducting and supporting a variety of fair housing activities.
Richmond’s Fair Housing Law
Richmond has a Fair Housing Ordinance and a Human Relations Commission that is staffed by the Office of Human Services. In its declaration of policy, the ordinance states: “It is the policy of the city to provide for fair housing throughout the city, to all its citizens, regardless of race, color, religion, national origin, sex, age, marital status, presence of children in the family or disability, and to that end to prohibit discriminatory practices with respect to residential housing by any person or group of persons, in order that the peace, health, safety, prosperity and general welfare of all the inhabitants of the city may be protected and ensured. To this end, the city encourages the enforcement, by both public and private agencies, of laws prohibiting discriminatory practices as defined in this article. This article shall be deemed an exercise of the police power of the state for the protection of the people of the state as granted to and conferred upon the city.” (Sec. 58-31 through 58-42)
The substantive provisions of Richmond’s fair housing ordinance – the protected classes, prohibited acts, and exemptions - are very similar to the Virginia and federal fair housing
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laws (marital status is an additional protected class). The Richmond fair housing ordinance also provides for enforcement by private action in the circuit court of the city for injunctive relief and money damages or by filing a fair housing complaint with the Office of Human Services Advocacy. Complaints must be in writing and verified by the complainant, and filed within 180 days of the alleged unlawful housing practice.
The ordinance also provides for a local administrative process for accepting and investigating fair housing complaints, although the Human Relations Commission does not exercise that authority. The framework set forth in the ordinance provides that upon the filing of a complaint, the Office of Human Services Advocacy shall determine whether there is probable cause to believe that a violation has occurred. If no probable cause is found, the complaint is dismissed. If probable cause is found, the Office of Human Services Advocacy is to attempt to resolve the complaint by conciliation. If conciliation efforts are unsuccessful, the complainant may request that the complaint be forwarded for a hearing by the Richmond Human Relations Commission. The person charged with the discriminatory housing practices has the opportunity to present evidence and argument to the Commission. If it finds a violation, the Commission has the authority to issue a cease and desist order giving a reasonable time to take corrective action. It has no power to award money damages or other relief. If there is noncompliance with the cease and desist order, either the City Attorney or the complainant may seek to have the order enforced by the circuit court. (Sec. 58-40)
The Office of Human Services Advocacy also may, on its own initiative, take appropriate steps to remedy unlawful housing practices under the ordinance, although the ordinance does not describe under what circumstances the office would do so or the procedures it would follow in doing so. (Sec. 58-41)
While the Richmond ordinance provides coverage and rights for victims of housing discrimination similar to those in the federal and state fair housing laws, the relief available to victims is very limited. In the absence of a voluntary settlement, the remedy under the ordinance is limited to a cease and desist order. There are no provisions for meaningful remedies or damages for victims of discrimination and there is no incentive for victims of discrimination to utilize the City ordinance.
Effective enforcement and remedies for City victims of housing discrimination rely on referrals to the state and federal administrative processes or private legal action. The absence of a City process means that an effective referral system to the state and federal enforcement process is essential. Since the state and federal complaint process function reasonably well, we see no need for the City to add its own administrative process, which would be a duplication of effort.
Richmond’s Fair Housing Activity
While every locality receiving Community Development Block Grant (CDBG) funds must affirm that it supports fair housing, what is actually done to dismantle barriers to housing is the measure of that commitment. There are two primary areas in which to
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evaluate a local government’s commitment to fair housing: (1) does the jurisdiction ensure that its own actions promote open housing and (2) does the jurisdiction ensure that its residents have access to a full range of fair housing enforcement services?
Promoting Fair Housing: By requiring recipients of federal funds to complete an
analysis of the impediments to fair housing in their communities, HUD provides a framework for asking and answering questions about whether a locality promotes open housing. The City of Richmond has made numerous efforts to support fair housing. Since the first Impediment Study was conducted in 1996, the City has engaged in and encouraged a variety of activities to increase awareness of fair housing laws, most of which have been conducted by HOME. Training sessions and workshops have been conducted for city staff – although sparsely attended - on fair housing and predatory lending issues. A fair housing session specifically focused on sexual harassment in housing was conducted for the Richmond Police Training Academy. Materials on fair housing, predatory lending, housing counseling, and sexual harassment, developed and provided by HOME, have been regularly disseminated to consumers through city agencies, neighborhood and community based organizations, and community development corporations. Recommendations for further actions are included in Chapter 6 on Expanding Rental Opportunities and Chapter 7 on Expanding Homeownership Opportunities.
According to local HUD staff, HUD did not conduct a compliance review of any of the three localities covered in this study during the period 1995 to 2004. HUD did conduct a Section 504/ADA compliance review of the Richmond Redevelopment and Housing Authority in fiscal 2002, but no letter of determination was available for this report. In the summer of 2001, HUD conducted a monitoring review of the City’s Community Development Block Grant (CDBG), Housing Opportunities for Persons with AIDS (HOPWA), and HOME Investment Partnership programs for fiscal years 1999 and 2000. In the summer of 2004, HUD reviewed the CDBG, HOME and Emergency Shelter grant programs for fiscal year 2002 and 2003. While there were a few “findings” and “concerns” raised that required action by the City, none were specifically related to fair housing problems and the overall determination in each instance was “that the City of